On September 26, 2019, President Trump issued Executive Order 13888 with the purpose of enhancing state and local government involvement in refugee resettlement. The Order provides that going forward, the Federal Government will “resettle refugees only in those jurisdictions in which both State and local governments have consented to receive refugees . . . .” Exec. Order No. 13888, 84 Fed. Reg. 52355 (2019). Consequently, state and local governments may choose whether or not refugees may be resettled in their area.
This opportunity to impact whether or not refugees may be resettled within a particular location is of significance to many state and local officials in Pennsylvania. Historically, Pennsylvania has resettled a significant number of refugees, ranking within the top ten U.S. states resettling refugees in fiscal year 2018 by accepting 906 refugees. It is likely Pennsylvania will continue to receive a sizable portion of refugees for the U.S. in future years, evinced by the increase to 969 refugee arrivals in 2019. Thus, the implications of Executive Order 13888 may prompt local governments in Pennsylvania to determine whether or not refugee resettlement is in the best interest of the community and the prospective refugees. Governor Wolf issued a letter to President Trump and Secretary of State Pompeo on October 15, 2019 confirming that Pennsylvania will continue to welcome refugees in the Commonwealth’s communities.
Executive Order 13888 declares that for the Secretary of State and Secretary of Health and Human Services to obtain approval for initial settlement of refugees, the State and local government must “both consent, in writing . . . before refugees are resettled within that State and locality under the Program.” Exec. Order No. 13888. The requirement to obtain state and local government consent was operationalized by the State Department’s Bureau of Population, Refugees, and Migration (PRM) through their Notice of Funding Opportunity for Reception and Placement Program.
The Notice of Funding Opportunity provides that for fiscal year 2020, applicants that propose to resettle refugees should seek written consent from the state governor’s office and the chief executive order of the local government. Essentially, in order to apply for federal funds under the Reception and Placement Program, resettlement agencies will have to state within the application whether the respective state and local governments have consented. In practical effect, the mandate in Executive Order 13888 reinforces Section 1522 of the Immigration and Nationality Act that required state and local consultation concerning the intended distribution of refugees. 8 U.S.C. § 1522.
Yet, the Executive Order has caused great concern among refugee advocates and religious and other charitable organizations that have long supported refugee resettlement, and many State and local governments alike, due to its clarification that taking into consideration the locality’s consent to the refugee resettlement, “if either a State or locality has not provided consent to receive refugees under the Program, then refugees should not be resettled within that State or locality” unless the Secretary of State concludes the failure to resettle refugees within that area would be contrary to the policies of the Immigration and Nationality Act. Exec. Order No. 13888. As a result, local governments under the Order could effectively block initial refugee resettlement by withholding written consent.
This directive has prompted a variety of responses. The majority of State and local leaders that have responded, including Governor Wolf of Pennsylvania, have proactively reaffirmed commitments to resettling refugees in that area. To date, 42 governors and more than 100 local governments have signed letters of acceptance indicating willingness to accept refugees.
In other areas, local governments have taken the opportunity to vote against refugee resettlement. For example, in Bemidji, Minnesota the local government opted to ban resettlement of refugees within its boundaries. In a similar fashion, Governor Greg Abbott of Texas provided in a letter to Secretary of State Mike Pompeo stating that Texas does not consent to initial refugee resettlement for fiscal year 2020. These measures to restrict refugee resettlement under Executive Order 13888 would appear to be invalid.
In HIAS, Inc. v. Trump, immigration advocates challenged Executive Order 13888 in the federal District Court of Maryland, arguing that the Order gives individual state and local governments the power to veto resettlement in their respective jurisdictions. HIAS, Inc. v. Trump, No. CV PJM 19-3346, 2020 WL 218646, at *1 (D. Md. Jan. 15, 2020). The Court agreed, and on January 15th, granted a preliminary injunction prohibiting enforcement of Executive Order 13888 and the Notice of Funding Opportunity for Reception and Placement Program. Judge Messitte of the District Court of Maryland wrote that “giving States and Local Governments the power to veto where refugees may be resettled – in the face of clear statutory text and structure, purpose, Congressional intent, executive practice, judicial holdings, and Constitutional doctrine to the contrary – Order 13888 does not appear to serve the overall public interest.” Id. at *13. The preliminary injunction ordered that refugee resettlement activity would return to its process prior to the Executive Order. Id.
Undoubtedly appeals from the issuance of the preliminary injunction will ensue. In the meantime, it appears the enhanced process envisioned by Executive Order 13888 and carried out through the Notice of Funding Opportunity for Reception and Placement Program is invalid. But this is not to say that state and local governments will have no say in refugee resettlement within their jurisdictions going forward absent the Order. Provisions of the Immigration and Nationality Act that require state and local government consultation remain in force. Further, the preliminary injunction is only a temporary measure barring enforcement until the issue is considered on the merits. Therefore, it remains important for state and local governments to assess the impact initial refugee resettlement will have in the area and to be prepared to communicate how the locality’s economic and social positions may or may not support resettlement in the community, whether or not Executive Order 13888 is revived in the future.